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The energy sector is one of the most complex and difficult areas of policy in the world today. Energy policy-makers and regulators face a three-cornered dilemma. The imperatives of each corner tend to defeat the others. The competing objectives are:
1. maintaining sufficient reliable energy supply
2. maintaining affordability and accessibility
3. mitigating climate change and other environmental degradations
Read moreDespite a wave of deregulation which came into vogue in the early 1980’s, many important services and systems we all rely upon are overseen by regulatory agencies and tribunals who set the prices for services, determine minimum service standards, and approve major contracts, projects and capital investments. Here in British Columbia, for example, our electricity and gas utilities are supervised by the BC Utilities Commission, as is the mandatory coverage program of the provincial government’s monopoly automobile insurance provider, the Insurance Corporation of British Columbia.
Read moreBritish Columbia deals with essential service labour disputes differently from most jurisdictions. Rather than the familiar game of industrial “chicken” (where unions press their strike actions as far as they can before government intervenes with back-to-work orders and lopsided arbitration) we have a “controlled strike” mechanism. The Labour Relations Board designates specified levels of services and staffing as essential; the parties are free to strike or lock out so long as the designations are maintained.
Read moreThere is no magic solution to the damage that our use of energy inflicts on the earth’s climate, other than conservation. Every other strategy has its downside of unintended consequences. That includes the use of renewable generation technologies.
There is a growing push from US utilities to flatten out block or multi-tiered electricity rates to buffer themselves from losses from net metering.
Read moreIf your car has ever been towed in Vancouver, because it was parked illegally for example, you will undoubtedly have come into contact with Busters Towing.
And if you're like me you will have wondered whether these folks are unionized. Well it now turns out that they may soon be.
In a decision handed down on April 23, 2013 Busters v. Teamsters Local 31, Associate Chair Matacheski, rejected the first of a number of employer preliminary objections to the application for certification.
Read moreSometimes I come across decisions that while on the surface don't seem to have much to do with labour law, they can have huge consequences for working people. For example, disability benefits and group life benefits are often provided as a result of a collective agreement obligation, but recovering those benefits will involve suing the insurance company in court. In those circumstances, it will be insurance law that applies.
Read moreA brief and clear arbitration decision by Arbitrator Colin Taylor on the rate of pay for a coal mine worker who worked on Christmas Day in December 2011 was issued on November 13, 2012. It reminds us of the importance of negotiating precise collective agreement language, and of the need to make the resolution of disputes through labour arbitration more timely. At least everyone in that bargaining unit will know what rules apply if someone workes this Christmas day.
For those interested in improving the process of labour arbitration, the Labour Law Subsection of the BC Branch of the Canadian Bar Association sponsored several panel discussions at their meetings this fall.
Mackenzie v. Jace Holdings is a decision issued last week where the Human Rights Tribunal upheld a complaint by a former employee of Thrifty's who had suffered from depression most of her life that she had been improperly dismissed because of her disability. This is a case that illustrates that an employer has a duty to inquire into whether an employee's inappropriate behaviour is linked to a mental health issue. Where the employer fails to make such inquiries and proceeds to terminate or otherwise discipline an employee it runs the risk of being found in breach of the Human Rights Act and of failing to accommodate the disabled employee.
In a decision earlier in 2012, Vernon v. BC Liquor Distribution Branch the BC Supreme Court highlighted the importance of fair and impartial investigations into employee misconduct. Although this did not involve a unionized employee, the court's comments are applicable. The court's criticism of the investigation process speaks for itself and starts at paragraph 278 of the decision:
[278] The investigation was flawed from beginning to end. It was neither objective nor fair.
The Supreme Court of Canada just issued its decision in R.v. Cole http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12615/index.do. Below are the relevant quotes from the decision headnote:
The accused, a high-school teacher, was charged with possession of child pornography and unauthorized use of a computer. He was permitted to use his work-issued laptop computer for incidental personal purposes which he did. While performing maintenance activities, a technician found on the accused’s laptop a hidden folder containing nude and partially nude photographs of an underage female student.
The BC Supreme Court refused to overturn a decision of the LRB dismissing a s.12 complaint against the BCGEU. In Mazerolle v. Labour Relations Board the BCGEU settled a grievance but the grievor changed her mind right after the settlement. BCGEU refused to renege on the settlement and the court found that it wa reasonable for the LRB to conclude that broader labour relations reasons were proper for the BCGEU to consider in deciding not to renege on the settlement with the employer.
There are some good lessons for stewards and union representatives from this case. The most important one is to take good thorough notes of the discussions with grievors throughout the course of settlement negotiation and to keep the grievor informed throughout the whole process.
http://canlii.ca/en/bc/bclrb/doc/2012/2012canlii44734/2012canlii44734.html is the link to a recent LRB decision that provides good guidance on what the law is when a union and an employer settle a grievance and the grievor signs a release. According to the LRB, absent circumstances that prove undue influence or duress, the release signed as part of the settlement will bar a complaint of a breach of duty of fair representation against the union.
In Viking Air v. CAW B87/2012 a reconsideration panel chaired overturned an original decision that had ruled the employer did not have to provide the union with its members' e-mail addresses. In the original decision Vice-Chair Topalian concluded that because the employer had already provided the members' addresses and telephone numbers and because the union could ask its members directly for their e-mail address, the e-mail addresses were not necessary for the union to meet its representational obligations under the Labour Code.
Read moreI'm often asked to explain the doctrine of estoppel and how it applies in the labour relations context. I found this nice quote in University Health Network v. Ontario Nurses Association issued two weeks ago:
54. Both parties referred to the recent Supreme Court of Canada’s recent decision in Nor- Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 (CanLII), 2011 SCC 59 in which the Supreme Court upheld an arbitrator’s award that had adapted and applied the equitable doctrine of estoppel
Vice Chair Elena Miller's decision in Matson v. Interior Health Authority issued on November 15, 2011 will be of interest to those unions where long term disability claims are adjudicated by a claims review committee. This regime is to be found in the health care collective agreements, the provincial public service and other, primarily, public sector collective agreements where the plan is self-funded but its administration is contracted to one of the usual insurance companies
Read moreOn October 28, 2011 the Supreme Court of Canada issued a decision in Canadian Human Rights Commission and Donna Mowat v. Canada (AG) in which it ruled that the Canada Human Rights Tribunal has no jurisdiction to award compensation for legal costs incurred by human rights complainants. The Court found that s. 53(2) of the Canada Human Rights Act, the provision that contains the authority compensate for "any expenses incurred by the victim as a result of the discriminatory practice” does not include compensation for legal costs incurred to prosecute a complaint.
The BC Human Rights Act contains a similar provision at s. 37(2)(d) and the BC Human Rights Tribunal has also awarded legal costs to complainants in particularly egregious cases. See for example http://www.bchrt.bc.ca/decisions/2008/pdf/oct/376_Senyk_v_WFG_Agency_Network_(No_2)_2008_BCHRT_376.pdf. Undoubtedly the Supreme Court of Canada ruling in this case will have a significant impact in our province as well.
"Arthur Moore exposes his workers to asbestos, a deadly substance, without protection and upon forged hazardous-material reports that conceal the danger. He exploits young recovering addicts as his workforce." So begins WCB v Moore a unanimous judgment issued to-day by the BC Court of Appeal. After several unsuccessful attempts to have Moore stop this practice, the Workers' Compensation Board obtained a court injuction. But Moore continued and WCB made an application to the BC Supreme Court citing Moore "doing business as AM Environmental" for contempt of the injunction.
Read moreIn the recent decision Canadian Corps of Commissionaire v. PSAC , Vice Chair Bruce Wilkins dismissed the employer's objections to PSAC's application to vary its multi-site certification to include alarm response drivers who worked out of the Commissionaires' headquarters in Victoria and ordere that the votes be counted.
The employer had three objections to the application to vary. The first was an uncommon objection. The employer argued that there was a clause in the collective agreement that provided these employees would be excluded and could not be organized.
In Port Transport Inc and CAW, a decision issued by the LRB on March 23, 2011 Vice Chair Topalian declared that Port Transport Inc had committed an unfair labour practice by refusing to provide the union with the following information:
a) a current contact list containing the names, addresses, telephone numbers and e-mail addresses of all members of the bargaining unit,
b) specific information on each bargaining unit member including name, date of birth, benefit coverage (single,family, enrolled, not eligible, etc.), wage rate(s), premium(s),job classification(s) and any other form of remuneration including but not limited to vacation entitlement, and any profit-sharing, incentive or bonus plans in effect, and
c)actual data on usage and cost on all areas of any benefit plan for the past three (3) years.
In Lavender Co-Op Housing the BC Court of Appeal today upheld a lower court's decision that overturned the BC Human Right's tribunal finding of prima facie discrimination on the basis of marital status against the membership rules of a cooperative housing society.. For those interested in the "standard of review" this is a good case on the applicable standard to questions of "mixed law and facts" (and yes, it is correctness). For the rest of us, the case confirms that prima facie discrimination is established not by a comparative analysis, but by determining whether the conduct complained of is prohibited under the Human Rights Code by definition.